State v. Cummings

• Decision Date: 24 May 1948
• Docket Number: 36756.
• Citation: 35 So.2d 636,203 Miss. 583
• Court: Mississippi Supreme Court
• Parties: STATE v. CUMMINGS.

35 So.2d 636

203 Miss. 583

STATE v. CUMMINGS.

No. 36756.

Supreme Court of Mississippi

May 24, 1948

Suggestion of Error Overruled June 14, 1948.

Crawley & Ford and John C. Love, all of Kosciusko, for appellant.

J. P. Coleman, of Ackerman, J. Ed Franklin, of Jackson, W. D. Coleman, of Ackerman, and L. F. Easterling, of Jackson, for appellee.

ROBERDS Justice.

On April 5, 1932, the W 1/2 of the SW 1/4 of Section 7, Township 19, Range 11, situated in Choctaw County, this State, was sold to the State of Mississippi for nonpayment of taxes thereon for the year 1931. The land was then owned by and assessed to L. D. Hemphill.

The State, on August 31, 1936, executed a patent to said land to appellee Cummings.

On June 19, 1946, the State Land Commissioner filed the bill in this cause to annul and cancel that patent on the grounds that Cummings failed to answer certain questions in the application for the patent and made false answers to other questions therein. Cummings denied these charges, and, in addition, contended the bill should not be sustained because (1) he, Cummings, took charge of the land under the patent, made extensive improvements thereon, had paid the state and county taxes for eleven years and drainage taxes for two years, and that, for these reasons, the doctrine of laches barred the suit; and (2) that the proceeding, while technically in the name of the State, was in fact brought for and on behalf of the heirs of Hemphill the former owner, and that said heirs had engaged and agreed to pay the attorneys who were prosecuting the suit. The chancellor found as a fact that the attorneys had been so employed but declined to dismiss the suit for that reason. He further found that the application contained no material omission or mis-statement of fact invalidating the patent and, in addition, that the State was barred by laches from successfully maintaining the suit. He, therefore, dismissed the bill and sustained Cummings' cross bill, and entered a decree validating Cummings' title as against the State. From that decree the Land Commissioner appeals.

We pretermit the question of laches and go at once to the deciding question in the case, and that is whether the chancellor was manifestly wrong in holding that the State failed to prove that Cummings, in procuring the patent, was guilty of actual fraud under the applicable provisions of Chapter 309, Laws of Mississippi 1940, Sections 1315 to 1322, Miss. Code of 1942, applying thereto the facts as found by the chancellor. Section 1317, Code 1942, imposes on the chancery court, in a proceeding of this nature, the duty to validate and perfect titles under patents from the State '* * * unless it shall appear to the court and the court shall find as a fact that the state has not acquired title to said land by virtue of said tax sale, or that the title to said land involved in the suit was divested out of the state of Mississippi without payment of purchase price or by reason of actual fraud on the part of the patentee, or his representatives * * *,' nor shall a patent theretofore issued be cancelled because of the loss of the application to purchase the land, 'or because of errors or omissions or incorrect statements in said application, or other papers in connection with the sale of said land, such matters not constituting fraud as above defined.' The validity of the patent in question is challenged under the foregoing statute on the ground (1) that Cummings in his application in response to the question 'Acres in timber?' answered 'None,' and to the question 'Description of timber and value,' he answered 'cut-over'; and (2) in response to the question 'Amount of state land purchased during 1936,' he answered 'None.'

As to the first contention, the proof on behalf of the Commissioner showed there was considerable merchantable timber on the land when the application was made; the proof on the part of Cummings was to the effect it contained no timber of appreciable value at that time; that Hemphill sold and removed from the land all of the timber of any value after the sale to the State. The chancellor accepted the evidence of Cummings on that question and it amply supports his finding.

On the second question, the opinion of the chancellor states 'The Court further finds that the defendant made application for the purchase of 124 acres of land in 1935 and did all things required of him, including the payment of the purchase price, to secure a patent to same, * * *' but that the State did not issue the patent until January 15, 1936. The chancellor further held that the statement of Cummings in his application that he had not purchased any land from the State in 1936, as above set out, did not prove him guilty of 'actual fraud' under said Section 1317. Can we say he was manifestly wrong in that conclusion? Said Section 1317 requires establishment of actual fraud on the part of the patentee, or his representative, in procuring the patent before it can be cancelled on the ground of fraud. Actual fraud is defined in 37 C.J.S., Fraud, § 2, p. 210, in these words: 'Actual fraud is intentional fraud, an intent to deceive being an essential element thereof. It means fraud according to the common conscience, and that the party charged therewith was inspired by a deliberate, fraudulent purpose to injure and deceive the party complaining; it implies deceit, artifice, and design, and imports the active operation of the mind; it consists in deception, intentionally practiced to induce another to part with property or to surrender some legal right, and which accomplishes the end designed; and it includes cases of the intentional and successful employment of any cunning, deception, or artifice used to circumvent, cheat, or deceive another. Falsehood is an ingredient thereof.' The application filed in 1935 was not produced. Presumably it was in the State Land Office. No one connected with that office at the time of the trial, or previously, testified in the case. But the chancellor found that the application was filed in 1935 and that in 193...